Privilege not waived by documentary footage, court rules

By Jessica M. Karmasek | May 26, 2011


PHILADELPHIA (Legal Newsline) - A federal appeals court has overturned a decision allowing Chevron Corp. to receive the documents of Philadelphia lawyer Joseph Kohn, who represented Ecuadorian plaintiffs against the company for several years.

The U.S. Court of Appeals for the Third Circuit, in a 44-page opinion filed Wednesday, ruled that the attorney-client privilege of the Ecuadorians was not waived by allowing a film director to shoot meetings involving lawyers and their clients.

The film footage was taken for the film "Crude," which premiered at the Sundance Film Festival in 2009 and documents Chevron's alleged toxic dumping in Ecuador and the legal battle to hold the company accountable for what many experts believe is the world's worst oil-related disaster.

Chevron had obtained the film footage through a separate lawsuit in New York against Joseph Berlinger, the director of "Crude."

The company then tried to use Berlinger's footage of Kohn discussing the case on camera to argue he waived attorney-client privilege and therefore his entire case file of thousands of documents and e-mails should be turned over to Chevron.

"Inasmuch as we hold that the communications filmed for 'Crude' and its outtakes were not covered by the attorney-client privilege when made due to the presence of the filmmakers at the time of the communications, we will reverse the District Court's orders because the public disclosure of non-privileged communications does not lead to a subject matter waiver of the attorney-client privilege for communications covered by the privilege," Justice Morton Ira Greenberg wrote for the court.

The appeals court remanded the matter to the U.S. District Court for the Eastern District of Pennsylvania so that it may consider the Chevron applicants' contention that "certain communications in Kohn's file are discoverable pursuant to the crime-fraud exception to the attorney-client privilege."

Karen Hinton, spokeswoman for the Ecuadorians, said the appeals court's decision again illustrates how Judge Lewis Kaplan, for the Southern District of New York, has become "more and more of an extremist in the federal judiciary" given his rulings in the Ecuador case.

Hinton pointed to the appeals court's "interesting commentary."

"The Chevron applicants are asking that American courts make a finding that the attorneys in a civil case in Ecuador can control the Ecuadorian criminal justice system. Though it is obvious that the Ecuadorian judicial system is different from that in the United States, those differences provide no basis for disregarding or disparaging that system. American courts, though justifiably proud of our system, should understand that other countries may organize their judicial systems as they see fit," the court wrote in its ruling.

"These sober comments stand in stark contrast to the derogatory remarks made by Kaplan about the integrity of Ecuador's judiciary system," Hinton said.

Earlier this month, Kaplan refused to recuse himself from Chevron's racketeering lawsuit. The Ecuadorian plaintiffs suing the company had filed a motion last month asking him to withdraw from the case.

They alleged the judge prejudged their case from the very beginning and that he has developed a "deep-seated antagonism" toward them, their counsel, the Ecuadorian government, the Ecuadorian trial court and the entire Ecuadorian judicial system.

From Legal Newsline: Reach Jessica Karmasek by e-mail at

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